IN THE CASE OF:	  

		BOARD DATE:	  	  22  January 2009

		DOCKET NUMBER:  AR20080013071 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her deemed election request for court-ordered former spouse Reserve Component (RC) Survivor Benefit Plan (SBP) coverage be accepted.

2.  The applicant states, in effect, that the deadline for submission of the deemed election request for former spouse RCSBP coverage was 7 June 2008, but due to her legal advisor "dropping the ball" she did not apply for former spouse RCSBP until 7 August 2008.

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  a copy of her marriage certificate dated 30 December 1989;

   b.  a copy of her final divorce decree and court order dated 7 June 2007; and

	c.  a letter addressed to the Retired Pay Processing Department for SBP, dated 7 August 2008.

CONSIDERATION OF EVIDENCE:

1.  On 2 September 1982, the service member enlisted in the Regular Army and served until he was honorably released from active duty and transferred to the Navy Reserve.  The highest grade he held on active duty was specialist four.

2.  On 30 December 1989 the service member married the applicant.

3. On 12 September 1995 the service member was appointed as a second lieutenant in the U.S. Army Reserve Nurse Corps.  He was promoted to first lieutenant on 10 July 1997, to captain on 30 April 2002, and to major on 8 April 2008.

4.  On 4 January 2007 the U.S. Army Human Resources Command issued the service member a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter informed the service member that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  This letter also explained to the service member that he was entitled to participate in the RCSBP and that by law he had only 90 calendar days from the date he received this letter to submit his RCSBP election statement (DD Form 2656-5) or SBP election certificate (DA Form 1883).  If he did not submit his election within 90 days, he would not be entitled to survivor benefit coverage until he applies for retired pay at age 60.

5.  There is no evidence in the service member's record that shows he elected to participate in the RCSBP during his 90-day window of opportunity in 2007.

6.  On 7 June 2007 the applicant and the service member were divorced.  Item 16 of the divorce agreement stated, "The applicant shall have an interest in the service member's military retirement benefits, to be transferred to her via Court Order Acceptable for Processing (or other substantially equivalent document which conforms to the requirement of the United States government)." The divorce decree also stated that the applicant's interest shall be 25 percent of the service member's monthly disposable military pay at the time of his retirement.  It continues to state that the applicant would be treated as the service member's surviving spouse.  The divorce decree concludes by stating the service member shall have as his sole property the balance of his military retirement benefits.

7.  In conjunction with her application, the applicant submitted a letter to the Retired Pay Processing Department for SBP, dated 7 August 2008, subject:  Divorce Decree for [the member and the applicant], Court Order Surviving Benefit for Former Spouse "Deemed Election" Former Spouse Coverage.  The applicant's letter states that by order of the divorce decree she would be treated as the service member's surviving spouse, that she wants to remain on the SBP as the former spouse, and she was deeming her election for former spouse coverage.

8.  The personnel data section of the service member's Soldier Management System record printed on 21 January 2009 shows the service member's current marital status as divorced.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (a) elect to decline enrollment and choose at age 60 whether to start SBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member’s 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

10.  Public Law 99-661, enacted 14 November 1986, empowered the courts to 
mandate former spouse coverage (without member’s agreement) in court orders issued on or after 14 November 1986.

11.  Public Law 106-398, enacted 30 October 2000, required Reserve and Guard members, who have completed their service obligation, considered entitled for retired pay, but who are not yet age 60, to obtain their spouses concurrence in RCSBP elections that do not provide maximum spouse coverage (immediate option).  This law applies to members receiving notification of service-completion after 1 January 2001.  

12.  Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive RCSBP benefits from the service member based on her divorce decree was carefully considered and found to have merit.

2.  At the time the service member received his 20-year letter, he and the applicant were still married.  Therefore, his failure to elect an option should have defaulted to Option C "Immediate Spouse Coverage".  

3.  By law, incident to the proceedings of divorce, a service member has 1 year to elect former spouse coverage.  The law also permits the applicant to request that the former spouse SBP coverage election be deemed to have been made within 1 year of a date of a court order of divorce.  There is no evidence that the service member made a voluntary election.  There is evidence that shows the applicant attempted to make a deemed election in August 2008.  Furthermore, there is no evidence that the former spouse remarried after his divorce from the applicant.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant made a request for deemed election for former spouse RCSBP coverage as directed by the divorce decree within 1 year of her divorce from the service member.



____________X_____________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013071



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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